Thursday, May 29, 2014Last Update: 6:14 AM PT

Right to Record Police Affirmed by 1st Circuit

(CN) - Drivers have a First Amendment to peaceably film traffic stops, the 1st Circuit ruled, denying police officers immunity from a civil rights suit. The incident at issue involves a March 2010 traffic stop on South Stark Highway in Weare, N.H. Carla Gericke was following a friend, Tyler Hanslin, to his house when Sgt. Joseph Kelley pulled Hanslin over for a traffic violation at approximately 11:30 p.m. Hanslin revealed that he had a firearm in the car, so Kelley told him to get out of the vehicle. Gericke meanwhile had pulled into a nearby middle school parking lot to wait. Standing roughly 30 feet from Kelley, she pulled out a video camera and told Kelley that she was going to record the stop. Unbeknownst to Kelley, Gericke's camera malfunctioned and would not record, but she continued to point the camera in his direction. The Boston-based federal appeals court noted that this technical glitch does not alter its May 23 ruling. Gericke claimed Kelley never asked her to stop recording, or to leave the area. But when Officer Brandon Montplaisir arrived at the scene, he arrested her for unlawful interception of oral communications, and seized her camera. The charges were quickly dropped, but Gericke filed a civil rights suit against the officers and the town. Her case went to the three-judge appellate court after a federal judge denied the officers qualified immunity. The officers argued there is no First Amendment right to film police officers during a late-night stop, when the officers faced two cars, each containing a driver and a passenger, one of whom had a gun. Wrting for the court, Judge Kermit Lipez said that, even if Kelley had ordered Gericke to stop filming, such an order may only be constitutional if the officer "can reasonably conclude that the filming itself is interfering, or is about to interfere, with his duties." Gericke's version of events does not establish that possibility, according to the ruling. "Under Gericke's account, she was permissibly at the site of the police encounter with Hanslin," Lipez wrote. "It would be nonsensical to expect Gericke to refrain from filming when such filming was neither unlawful nor the subject of an officer's order to stop. In the absence of such restrictions, a reasonable police officer necessarily would have understood that Gericke was exercising a clearly established First Amendment right."